# KAMATCHI v. LAKSHMI NARAYANAN

- **Citation:** [2022] 5 S.C.R. 629
- **Court:** Supreme Court of India
- **Decided:** 2022-04-13
- **Case number:** Criminal Appeal No. 627 of 2022
- **Bench:** Uday Umesh Lalit, Pamidighantam Sri Narasimha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kamatchi-v-lakshmi-narayanan-36442
- **Pages:** 28

## Headnote

Protection of Women from Domestic Violence Act, 2005 - ss.12
and 31 - Proceedings arising out of application of appellant-wife
u/s.12 of the Act in the year 2018 seeking protection in terms of
ss.17 and 18 of the Act - Petition of respondent-husband u/s.482
CrPC - High Court quashed the proceedings on ground of limitation
holding that ss.28 and 32 of the Domestic Violence Act r/w r.15(6)
of the Domestic Violence Rules, made the provisions of Criminal
Procedure Code applicable and therefore, appellant ought to have
filed application u/s.12 of the Act within period of one year from
date of the incident and since appellant had left the matrimonial
home in the year 2008, the application was abuse of process of the
court - Whether the application preferred u/s.12 of the Act was
rightly considered by the High Court for reckoning the period of
limitation - Held: The provisions of the Act contemplate filing of an
application u/s.12 to initiate the proceedings before the concerned
Magistrate - After hearing both sides and after taking into account
the material on record, the Magistrate may pass an appropriate
order u/s.12 of the Act - It is only the breach of such order which
constitutes an offence as is clear from s.31 of the Act - Thus, if
there be any offence committed in terms of the provisions of the Act,
the limitation prescribed u/s.468 CrPC will apply from the date of
commission of such offence - By the time an application is preferred
under s.12 of the Act, there is no offence committed in terms of the
provisions of the Act and as such there would never be a starting
point for limitation from the date of application u/s.12 of the Act -
Such a starting point for limitation would arise only and only after
there is a breach of an order passed u/s.12 of the Act - On facts,
the High Court wrongly equated filing of an application u/s.12 of
the Act to lodging of a complaint or initiation of prosecution - The
High Court was in error in observing that the application u/s.12 of
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[2022] 5 S.C.R.
the Act ought to have been filed within a period of one year of the
alleged acts of domestic violence - Respondent-husband to file his
response before the Magistrate within two weeks and the matter be
thereafter considered by the Magistrate in terms of the provisions
of the Act - Limitation - Code of Criminal Procedure, 1973 - ss.
468, 482 - Protection of Women from Domestic Violence Rules 2006.
Inderjit Singh Grewal v. State of Punjab and
another (2011) 12 SCC 588 : [2011] 10 SCR 557 and
Krishna Bhattacharjee v. Sarathi Choudhary (2016) 2
SCC 705 : [2015] 14 SCR 65 - distinguished.
Sarah Mathew v. Institute of Cardio Vascular Diseases
(2014) 2 SCC 62 : [2013] 12 SCR 674 - explained.
Adalat Prasad v. Rooplal Jindal (2004) 7 SCC 338 -
held inapplicable.
Dr. P. Padmanathan & Ors. v. Tmt. V. Monica & Anr.
2021 SCC Online Mad 8731; Krishna Pillai v. T.A.
Rajendran & Anr. 1990 (Supp.) SCC 121; Bharat
Damodar Kale & Anr. v. State of Andhra Pradesh (2003)
8 SCC 559 and Japani Sahoo v. Chandra Sekhar
Mohanty (2007) 7 SCC 394 : [2007] 8 SCR 582 -
referred to.
Case Law Reference
[2013] 12 SCR 674
explained
Para 9
(2004) 7 SCC 338
held inapplicable
Para 9
(1990) Supp. SCC 121
referred to
Para 12
(2003) 8 SCC 559
referred to
Para 12
[2007] 8 SCR 582
referred to
Para 12
[2011] 10 SCR 557
distinguished
Para 16
[2015] 14 SCR 65
distinguished
Para 17

## Text

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[2022] 5 S.C.R. 629
629
KAMATCHI
v.
LAKSHMI NARAYANAN
(Criminal Appeal No. 627 of 2022)
APRIL 13, 2022
[UDAY UMESH LALIT AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Protection of Women from Domestic Violence Act, 2005 - ss.12
and 31 - Proceedings arising out of application of appellant-wife
u/s.12 of the Act in the year 2018 seeking protection in terms of
ss.17 and 18 of the Act - Petition of respondent-husband u/s.482
CrPC - High Court quashed the proceedings on ground of limitation
holding that ss.28 and 32 of the Domestic Violence Act r/w r.15(6)
of the Domestic Violence Rules, made the provisions of Criminal
Procedure Code applicable and therefore, appellant ought to have
filed application u/s.12 of the Act within period of one year from
date of the incident and since appellant had left the matrimonial
home in the year 2008, the application was abuse of process of the
court - Whether the application preferred u/s.12 of the Act was
rightly considered by the High Court for reckoning the period of
limitation - Held: The provisions of the Act contemplate filing of an
application u/s.12 to initiate the proceedings before the concerned
Magistrate - After hearing both sides and after taking into account
the material on record, the Magistrate may pass an appropriate
order u/s.12 of the Act - It is only the breach of such order which
constitutes an offence as is clear from s.31 of the Act - Thus, if
there be any offence committed in terms of the provisions of the Act,
the limitation prescribed u/s.468 CrPC will apply from the date of
commission of such offence - By the time an application is preferred
under s.12 of the Act, there is no offence committed in terms of the
provisions of the Act and as such there would never be a starting
point for limitation from the date of application u/s.12 of the Act -
Such a starting point for limitation would arise only and only after
there is a breach of an order passed u/s.12 of the Act - On facts,
the High Court wrongly equated filing of an application u/s.12 of
the Act to lodging of a complaint or initiation of prosecution - The
High Court was in error in observing that the application u/s.12 of
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the Act ought to have been filed within a period of one year of the
alleged acts of domestic violence - Respondent-husband to file his
response before the Magistrate within two weeks and the matter be
thereafter considered by the Magistrate in terms of the provisions
of the Act - Limitation - Code of Criminal Procedure, 1973 - ss.
468, 482 - Protection of Women from Domestic Violence Rules 2006.
Inderjit Singh Grewal v. State of Punjab and
another (2011) 12 SCC 588 : [2011] 10 SCR 557 and
Krishna Bhattacharjee v. Sarathi Choudhary (2016) 2
SCC 705 : [2015] 14 SCR 65 - distinguished.
Sarah Mathew v. Institute of Cardio Vascular Diseases
(2014) 2 SCC 62 : [2013] 12 SCR 674 - explained.
Adalat Prasad v. Rooplal Jindal (2004) 7 SCC 338 -
held inapplicable.
Dr. P. Padmanathan & Ors. v. Tmt. V. Monica & Anr.
2021 SCC Online Mad 8731; Krishna Pillai v. T.A.
Rajendran & Anr. 1990 (Supp.) SCC 121; Bharat
Damodar Kale & Anr. v. State of Andhra Pradesh (2003)
8 SCC 559 and Japani Sahoo v. Chandra Sekhar
Mohanty (2007) 7 SCC 394 : [2007] 8 SCR 582 -
referred to.
Case Law Reference
[2013] 12 SCR 674
explained
Para 9
(2004) 7 SCC 338
held inapplicable
Para 9
(1990) Supp. SCC 121
referred to
Para 12
(2003) 8 SCC 559
referred to
Para 12
[2007] 8 SCR 582
referred to
Para 12
[2011] 10 SCR 557
distinguished
Para 16
[2015] 14 SCR 65
distinguished
Para 17
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
627 of 2022.
From the Judgment and Order dated 16.03.2020 of the High Court
of Judicature at Madras in Crl.O.P. No.28924 of 2018.
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Sharath Chandran, Shyam Gopal, Ms. D. Durga Devi, Mani
Bhushan Sinha, Pranab Prakash, Advs. for the Appellant.
Siddhartha Dave, Sr. Adv., Nikhil Singla, Vidhi Thaker, Gagan
Gupta, Advs. for the Respondent.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. Leave granted.
2. This appeal challenges the final judgment and order dated
16.03.2020 passed by the High Court1 in Crl. O.P. No. 28924 of 2018.
3. The present proceedings arise out of an application preferred
by the appellant under Section 12 of the Protection of Women from
Domestic Violence Act, 2005 (hereinafter referred to as 'the Act'), which
was numbered as D.V.C. No.21 of 2018 in the Court of Judicial
Magistrate, Ambattur, Chennai. The application was filed seeking
appropriate protection in terms of Sections 17 and 18 of the Act and was
preferred against the respondent-husband as well as the father-in-law
and sister-in-law of the appellant. The Protection Officer vide his
Domestic Inspection Report dated 21.08.2018 tabulated the incidents of
domestic violence as under:-
"4. Incidents of domestic violence:-
1 High Court of Judicature at Madras
KAMATCHI v. LAKSHMI NARAYANAN
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The basic allegations as culled out from the Report of the Protection
Officer were:-
"My name Kamakshi. Marriage solemnized in between me and
my husband on 07.09.2007. The dowry, which was given to my
marriage, 60 sovereign gold, 4 1⁄2 kg silver, Rs.50,000/- and other
household things placed at my Husband's House. My parents spent
Rs. 15 lakhs for marriage. Before the marriage, my husband family
members came to our home for give invitation and gave mental
stress and stated that jewel and dowry are not enough. My father
borrowed loan and conducted marriage with intention of marriage
should be go in smooth manner. After next day of marriage, they
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spoke in disrespectful manner towards me and my parents stating
that no sufficient jewel and household things were given. They
did many tricks for I would not go with my husband to London
and they tortured me. I gave birth to a male child on 06.09.2008.
My husband family members came for Punyathanam function
and spoke disrespectful as this is not our heir and refused to accept
the child. I preferred many cases for to living together with my
husband. I went to my husband home with the High Court order.
Rajeshwari has not allowed me and my child and spoke
disrespectful manner and drove us out and told me to go and die
somewhere."
4. Soon thereafter, father-in-law and sister-in-law of the appellant
filed Crl.O.P.No.27097 of 2018 under Section 482 of the Code of Criminal
Procedure, 1973 ('the Code', for short) before the High Court seeking
quashing of the proceedings under the Act. Crl.O.P. No.28924 of 2018
was filed by the respondent-husband seeking identical relief under Section
482 of the Code. The main grounds taken by the respondent in said
Original Petition were: -
"E. It is submitted that the Petitioners are forced to face the ordeal
of trial on no material or even probabilities or a real instance, thus,
the impugned proceedings in D.V. No. 21 of 2018 against the
Petitioner is illegal, unwarranted and it is nothing but an abuse of
process of law and therefore it is liable to be quashed.
F. The Petitioner submits that a matrimonial dispute is sought to
be given a criminal colour at the instance of the Respondent. The
allegations against the petitioner is unsustainable in law and allowing
the proceedings further would serve no purpose so far as the
Petitioner is concerned. Therefore, on that ground, the proceedings
against the Petitioner/Respondent in D.V. No.21 of 2018 on the
file of the learned Judicial Magistrate, Ambattur, is liable to be
quashed."
5. Both the Original Petitions came up before the High Court on
16.03.2020.
A. The Petition filed by the father-in-law and the sister-in-law
was allowed and the proceedings against them were quashed. It was
observed by the High Court :-
KAMATCHI v. LAKSHMI NARAYANAN
[UDAY UMESH LALIT, J.]
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"5. In view of the above, this Court is inclined to quash the
proceedings in D.V. No.21 of 2018, on the file of the Judicial
Magistrate, Ambattur, insofar as the petitioners herein are
concerned, on condition that, they shall ensure that the A1/husband
of the respondent shall deposit a sum of Rs.5,000(Rupees Five
Thousand only) before 5th of every English Calendar month to the
credit of D.V. No.21 of 2018, on the file of the Judicial Magistrate,
Ambattur, as ad-interim maintenance, without prejudice to both
the parties, failing which this order shall stand automatically
cancelled. On such deposit being made, the respondent is entitled
to withdraw the same.
6. Insofar as A1/husband of the respondent is concerned, since
the impugned proceedings in D.V.No.21 of 2018 is pending from
the year 2018 onwards, it would be appropriate to direct the Trial
Court to complete the trial within a period of six months from the
date of receipt of copy of this order. A1/husband of the respondent
is directed to appear before the Trial Court on the next hearing
date, failing which, the respondent is at liberty to approach this
Court."
B. However, with regard to the petition filed by the respondent,
the High Court took the view that the application ought to have been
filed within one year of the incident and since the appellant had left the
matrimonial home in the year 2008, the application was abuse of process
of the court. The relevant observations made were :-
"5. The only point for consideration is limitation. In this regard, it
is relevant to rely upon the judgment in the case of Inderjit Singh
Grewal vs. State of Punjab & Anr., reported in 2012 Crl.L.J.
309. Sections 28 and 32 of the Protection of Women from
Domestic Violence Act, 2005 r/w Rule 15(6) of the Protection of
Women from Domestic Violence Rules 2006, makes the provisions
of Criminal Procedure Code applicable. Therefore, the respondent
ought to have filed the complaint within a period of one year from
the date of the incident.
6. In the case on hand, the respondent left the matrimonial home
in the year 2008 itself, thereafter, there are so many proceedings
pending against the petitioner and the respondent herein, in respect
to their family disputes. The petitioner was directed to pay a sum
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of Rs.30,000/- to the respondent herein and a sum of Rs.15,000/-
to the minor son as maintenance in MC No.261 of 2013 and it is
under challenge before this Court in Crl.R.C.No.567 of 2018 and
the petitioner herein has been continuously paying the maintenance
to the respondent.
7. Therefore, on the ground of limitation, the entire complaint is
nothing but a clear abuse of process of Court and it cannot be
sustained as against the petitioner."
6. In these circumstances, the instant appeal is preferred by the
appellant against the order allowing the Petition filed by the respondent.
7. We have heard Mr. Sharath Chandran, learned Advocate in
support of the appeal and Mr. Siddhartha Dave, learned Senior Advocate
for the respondent.
8. Mr. Sharath Chandran, learned Advocate submits: -
a) The limitation prescribed under Section 468 of the Code
postulates inter alia that no cognizance be taken by the Court
more than a year after the commission of offence. Thus, the
limitation is to be reckoned from the date of commission of
offence.
b) Section 12 of the Act speaks of filing of an application seeking
one or more reliefs under the Act, whereafter the relevant material
is considered by the Magistrate including any Domestic Incident
Report. The matter is then heard in terms of Sub-Section (4) and
finally an order may be made on the application.
c) As laid down in Section 31 of the Act, any breach of an order
passed inter alia under Section 12 of the Act is punishable with
imprisonment of either description for a term which may extend
to one year, or with fine, or with both. Thus, the offence under
Section 31 of the Act will be said to have been committed only
after the breach of an order passed under Section 12 of the Act,
occurs.
d) There is no limitation under the Code or under the provisions of
the Act for filing of an application and as such, the High Court
was not right in observing that the proceedings were barred by
limitation.
KAMATCHI v. LAKSHMI NARAYANAN
[UDAY UMESH LALIT, J.]
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e) The Judgments relied upon by the High Court were completely
distinguishable. Reliance was placed on the decision of the Single
Judge of the High Court in Dr. P. Padmanathan & Ors. v. Tmt.
V. Monica & Anr.2.
9. Mr. Siddhartha Dave, learned Senior Advocate for the
respondent submits: -
i) The tabular chart prepared by the Protection Officer in his
Report indicates that after 16.09.2008 for almost 10 years nothing
was alleged against the respondent or the father-in-law or sisterin-law.
ii) The parties had been living separately for last several years
and the application was nothing but a desperate attempt to file
something against the respondent in a court of law; and was clearly
an abuse of process of court.
iii) Going by the dictum of this Court in Sarah Mathew v. Institute
of Cardio Vascular Diseases3, the starting point for reckoning
the period of limitation ought to be from the date of application
and as such, the High Court was justified in observing that the
action was barred by time.
In the written submissions, it is also submitted that: -
"This Hon'ble Court in Adalat Prasad v. Rooplal Jindal4
held that if a Magistrate takes cognizance of an offence, issues
process without there being any allegation against the accused, or
any material implicating the accused, or in contravention of
provisions of Sections 200 and 202, the order of the Magistrate
may be vitiated. However, the relief an aggrieved accused can
obtain at that stage is not by invoking Section 203 of the Code,
because the Code does not contemplate a review of an order.
Hence in the absence of any review power, or inherent power
with the subordinate criminal courts, the remedy lies in invoking
Section 482 of the Code."
 10. Before we consider the rival submissions, the relevant
provisions, namely Sections 12, 28, 31 and 32 of the Act may be extracted:-
2 2021 SCC Online Mad 8731.
3 (2014) 2 SCC 62.
4 (2004) 7 SCC 338.
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"12. Application to Magistrate. -
(1) An aggrieved person or a Protection Officer or any other person
on behalf of the aggrieved person may present an application to
the Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the
Magistrate shall take into consideration any domestic incident
report received by him from the Protection Officer or the service
provider.
(2) The relief sought for under sub-section (1) may include a relief
for issuance of an order for payment of compensation or damages
without prejudice to the right of such person to institute a suit for
compensation or damages for the injuries caused by the acts of
domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or
damages has been passed by any court in favour of the aggrieved
person, the amount, if any, paid or payable in pursuance of the
order made by the Magistrate under this Act shall be set off against
the amount payable under such decree and the decree shall,
notwithstanding anything contained in the Code of Civil Procedure,
1908 (5 of 1908), or any other law for the time being in force, be
executable for the balance amount, if any, left after such set off.
(3) Every application under sub-section (1) shall be in such form
and contain such particulars as may be prescribed or as nearly as
possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall
not ordinarily be beyond three days from the date of receipt of the
application by the court.
(5) The Magistrate shall endeavor to dispose of every application
made under sub-section (1) within a period of sixty days from the
date of its first hearing.
28. Procedure. -
(1) Save as otherwise provided in this Act, all proceedings under
sections 12, 18, 19, 20, 21, 22 and 23 and offences under section
31 shall be governed by the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974).
KAMATCHI v. LAKSHMI NARAYANAN
[UDAY UMESH LALIT, J.]
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(2) Nothing in sub-section (1) shall prevent the court from laying
down its own procedure for disposal of an application under section
12 or under sub-section (2) of section 23.
31. Penalty for breach of protection order by respondent.-
(1) A breach of protection order, or of an interim protection order,
by the respondent shall be an offence under this Act and shall be
punishable with imprisonment of either description for a term which
may extend to one year, or with fine which may extend to twenty
thousand rupees, or with both.
(2) The offence under sub-section (1) shall as far as practicable
be tried by the Magistrate who had passed the order, the breach
of which has been alleged to have been caused by the accused.
(3) While framing charges under sub-section (1), the Magistrates
may also frame charges under section 498A of the Indian Penal
Code (45 of 1860) or any other provision of that Code or the
Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if
the facts disclose the commission of an offence under those
provisions.
32. Cognizance and proof. -
(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), the offence under sub-section (1) of
section 31 shall be cognizable and non-bailable.
(2) Upon the sole testimony of the aggrieved person, the court
may conclude that an offence under sub-section (1) of section 31
has been committed by the accused."
11. Similarly, Section 468 of the Code is also set out for facility: -
"468.Bar to taking cognizance after lapse of the period of
limitation: -
(1) Except as otherwise provided elsewhere in this Code, no Court
shall take cognizance of an offence of the category specified in
sub- section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only
(b) one year, if the offence is punishable with imprisonment
for a term not exceeding one year;
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(c) three years, if the offence is punishable with imprisonment
for term exceeding one year but not exceeding three years.
(3)For the purposes of this section, the period of limitation in relation
to offences which may be tried together, shall be determined with
reference to the offence which is punishable with the more severe
punishment or, as the case may be, the most severe punishment."
12. In terms of Section 468 of the Code, the cognizance of an
offence of the categories specified in Sub Section 2 can not to be taken
after the expiry of the period specified therein.
In following cases, the complaints alleging commission of an
offence were filed well in time so that cognizance could have been taken
within the prescribed period, but the matters were considered by the
Magistrate after the expiry of the prescribed period, and as such the
cognizance in each of the cases was taken after the expiry of the period
prescribed.
(A) A bench of three Judges of this Court in Krishna Pillai v.
T.A. Rajendran & Anr.5, while dealing with Section 9 of the Child
Marriage Restraint Act, 1929, which mandates that no Court should
take cognizance of an offence after the expiry of one year from the day
when the offence was allegedly committed, observed: -
"3. It is not disputed that cognizance has been taken by the court
more than a year after the offence was committed. Counsel for
the respondents has stated that since the complaint had been filed
within a year from the commission of the offence it must be taken
that the court has taken cognizance on the date when the complaint
was filed. In that view of the matter there would be no limitation.
4. Taking cognizance has assumed a special meaning in our
criminal jurisprudence. We may refer to the view taken by a five
Judge bench of this Court in A.R. Antulay v. Ramdas Sriniwas
Nayak6. At p. 530 (para 31) of the reports this Court indicated:
"When a private complaint is filed, the court has to examine the
complainant on oath save in the cases set out in the proviso to
Section 200 Cr.P.C. After examining the complainant on oath and
examining the witnesses present, if any, meaning thereby that the
5 1990 (Supp.) SCC 121.
6 (1984) 2 SCC 500 : 1984 SCC (Cri) 277
KAMATCHI v. LAKSHMI NARAYANAN
[UDAY UMESH LALIT, J.]
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witnesses not present need not be examined, it would be open to
the court to judicially determine whether a case is made out for
issuing process. When it is said that court issued process, it means
the court has taken cognizance of the offence and has decided to
initiate the proceedings and a visible manifestation of taking
cognizance process is issued which means that the accused is
called upon to appear before the court.""
(B) In Bharat Damodar Kale & Anr. v. State of Andhra
Pradesh7 a complaint was lodged within one year but the cognizance
was taken after the period of one year was over. The complainant had
approached within time and the delay was because of an act of court,
over which the prosecuting agency or the complainant had no control. A
bench of two Judges of this Court observed that "Limitation for taking
cognizance of certain offences" must be reckoned from the day when
the complaint was filed or proceedings were initiated. The discussion on
the point was: -
"10. On facts of this case and based on the arguments advanced
before us, we consider it appropriate to decide the question
whether the provisions of Chapter XXXVI of the Code apply to
the delay in instituting the prosecution or to the delay in taking
cognizance. As noted above, according to the learned counsel for
the appellants, the limitation prescribed under the above Chapter
applies to taking of cognizance by the court concerned, therefore
even if a complaint is filed within the period of limitation mentioned
in the said Chapter of the Code, if the cognizance is not taken
within the period of limitation the same gets barred by limitation.
This argument seems to be inspired by the chapter heading of
Chapter XXXVI of the Code which reads thus: "Limitation for
taking cognizance of certain offences". It is primarily based on
the above language of the heading of the Chapter, the argument is
addressed on behalf of the appellants that the limitation prescribed
by the said Chapter applies to taking of cognizance and not filing
of complaint or initiation of the prosecution. We cannot accept
such argument because a cumulative reading of various provisions
of the said Chapter clearly indicates that the limitation prescribed
therein is only for the filing of the complaint or initiation of the
7 (2003) 8 SCC 559.
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prosecution and not for taking cognizance. It of course prohibits
the court from taking cognizance of an offence where the
complaint is filed before the court after the expiry of the period
mentioned in the said Chapter. This is clear from Section 469 of
the Code found in the said Chapter which specifically says that
the period of limitation in relation to an offence shall commence
either from the date of the offence or from the date when the
offence is detected. Section 470 indicates that while computing
the period of limitation, time taken during which the case was
being diligently prosecuted in another court or in appeal or in
revision against the offender should be excluded. The said section
also provides in the Explanation that in computing the time required
for obtaining the consent or sanction of the Government or any
other authority should be excluded. Similarly, the period during
which the court was closed will also have to be excluded. All
these provisions indicate that the court taking cognizance can take
cognizance of an offence the complaint of which is filed before it
within the period of limitation prescribed and if need be, after
excluding such time which is legally excludable. This in our opinion
clearly indicates that the limitation prescribed is not for taking
cognizance within the period of limitation, but for taking cognizance
of an offence in regard to which a complaint is filed or prosecution
is initiated beyond the period of limitation prescribed under the
Code. Apart from the statutory indication of this view of ours, we
find support for this view from the fact that taking of cognizance
is an act of the court over which the prosecuting agency or the
complainant has no control. Therefore, a complaint filed within
the period of limitation under the Code cannot be made infructuous
by an act of court. The legal phrase "actus curiae neminem
gravabit" which means an act of the court shall prejudice no man,
or by a delay on the part of the court neither party should suffer,
also supports the view that the legislature could not have intended
to put a period of limitation on the act of the court of taking
cognizance of an offence so as to defeat the case of the
complainant. This view of ours is also in conformity with the earlier
decision of this Court in the case of Rashmi Kumar v. Mahesh
Kumar Bhada8 .
8 (1997) 2 SCC 397 : 1997 SCC (Cri) 415
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11. If this interpretation of Chapter XXXVI of the Code is to be
applied to the facts of the case, then we notice that the offence
was detected on 5-3-1999 and the complaint was filed before the
court on 3-3-2000 which was well within the period of limitation,
therefore, the fact that the court took cognizance of the offence
only on 25-3-2000, about 25 days after it was filed, would not
make the complaint barred by limitation.
12. In view of our above finding, we do not think it is necessary
for us to go to the next question argued on behalf of the appellants
that the court below was in error in invoking Section 473 of the
Code for extending the period of limitation nor is it necessary for
us to discuss the case of State of Himachal Pradesh v. Tara
Dutt & Anr.9 relied on by the appellants."
(Emphasis added)
(C) In Japani Sahoo v. Chandra Sekhar Mohanty10 the offence
was allegedly committed on 2.2.1996 and the complaint was filed on
5.2.1996 but the cognizance of the offence was taken on 8.8.1997 when
the period of limitation under Section 468 of the Code for the concerned
offence was only six months. After considering the relevant cases on
the point including Bharat Damodar Kale7, a bench of two Judges of
this Court observed:
"48. So far as the complainant is concerned, as soon as he files a
complaint in a competent court of law, he has done everything
which is required to be done by him at that stage. Thereafter, it is
for the Magistrate to consider the matter, to apply his mind and to
take an appropriate decision of taking cognizance, issuing process
or any other action which the law contemplates. The complainant
has no control over those proceedings.
49. Because of several reasons (some of them have been referred
to in the aforesaid decisions, which are merely illustrative cases
and not exhaustive in nature), it may not be possible for the court
or the Magistrate to issue process or take cognizance. But a
complainant cannot be penalized for such delay on the part of the
court nor can he be non-suited because of failure or omission by
9 (2000) 1 SCC 230 : 2000 SCC (Cri) 125
10 (2007) 7 SCC 394.
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the Magistrate in taking appropriate action under the Code. No
criminal proceeding can be abruptly terminated when a complainant
approaches the court well within the time prescribed by law. In
such cases, the doctrine 'actus curiae neminem gravabit' (an act
of court shall prejudice none) would indeed apply. (vide Alexander
Rodger v. Comptoir D' Escompte.11 One of the first and highest
duties of all courts is to take care that an act of court does no
harm to suitors.
50. The Code imposes an obligation on the aggrieved party to
take recourse to appropriate forum within the period provided by
law and once he takes such action, it would be wholly unreasonable
and inequitable if he is told that his grievance would not be ventilated
as the court had not taken an action within the period of limitation.
Such interpretation of law, instead of promoting justice would lead
to perpetuate injustice and defeat the primary object of procedural
law.
51. The matter can be looked at from different angle also. Once
it is accepted (and there is no dispute about it) that it is not within
the domain of the complainant or prosecuting agency to take
cognizance of an offence or to issue process and the only thing
the former can do is to file a complaint or initiate proceedings in
accordance with law, if that action of initiation of proceedings has
been taken within the period of limitation, the complainant is not
responsible for any delay on the part of the court or Magistrate in
issuing process or taking cognizance of an offence. Now, if he is
sought to be penalized because of the omission, default or inaction
on the part of the court or Magistrate, the provision of law may
have to be tested on the touchstone of Article 14 of the
Constitution. It can possibly be urged that such a provision is totally
arbitrary, irrational and unreasonable. It is settled law that a court
of law would interpret a provision which would help sustaining
the validity of law by applying the doctrine of reasonable
construction rather than making it vulnerable and unconstitutional
by adopting rule of litera legis. Connecting the provision of
limitation in Section 468 of the Code with issuing of process or
taking of cognizance by the court may make it unsustainable and
ultra vires Article 14 of the Constitution.
11 (1871) LR 3 PC 465 : 17 ER 120
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52. In view of the above, we hold that for the purpose of computing
the period of limitation, the relevant date must be considered as
the date of filing of complaint or initiating criminal proceedings
and not the date of taking cognizance by a Magistrate or issuance
of process by a court. We, therefore, overrule all decisions in
which it has been held that the crucial date for computing the
period of limitation is taking of cognizance by the Magistrate/court
and not of filing of complaint or initiation of criminal proceedings.
53. In the instant case, the complaint was filed within a period of
three days from the date of alleged offence. The complaint,
therefore, must be held to be filed within the period of limitation
even though cognizance was taken by the learned Magistrate after
a period of one year. Since the criminal proceedings have been
quashed by the High Court, the order deserves to be set aside and
is accordingly set aside by directing the Magistrate to proceed
with the case and pass an appropriate order in accordance with
law, as expeditiously as possible."
(Emphasis added)
(D) In Sarah Mathew v. Institute of Cardio Vascular Diseases
etc. and others12, a bench of two Judges of this Court noted the facts of
the case as under: -
"1. Mr. K. Swami, learned counsel appearing for the appellant,
submitted that the High Court [Institute of Cardio Vascular
Diseases v. Sarah Mathew, Criminal OP No. 12001 of 1997,
decided on 17-7-2002 (Mad)] was clearly wrong in holding that
the proceeding against the respondents was barred by limitation,
as provided under Section 468(2)(c) of the Code of Criminal
Procedure, 1973, because the order issuing summons against the
accused was passed by the Magistrate after three years from the
date of the occurrence, even though the complaint was admittedly
filed within the period of limitation. In support of the contention,
he relies upon a two-Judge Bench decision of this Court in Bharat
Damodar Kale7 in which, on an examination of the provisions
contained in Chapter XXXVI of the Code of Criminal Procedure,
it was held that the Court can take cognizance of an offence, the
complaint of which is filed before it, within the period of limitation
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prescribed and, if need be, after excluding such time which is
legally excludable. It further held that the limitation prescribed is
not for taking cognizance within the period of limitation, but for
taking cognizance of an offence in regard to which a complaint is
filed or prosecution is initiated beyond the period of limitation
prescribed under the Code of Criminal Procedure. The decision
in Bharat Damodar Kale7 is followed in another two-Judge Bench
decision of this Court in Japani Sahoo v. Chandra Sekhar
Mohanty10. In para 52 of the decision in Japani Sahoo10, it was
reiterated that for the purpose of computing the period of limitation,
the relevant date must be considered as the date of filing of
complaint or initiating criminal proceedings and not the date of
taking cognizance by a Magistrate or issuance of process by a
court."
Thereafter, noticing the conflict in the view taken in Bharat
Damodar Kale7 and Japani Sahoo10 as against that in Krishna Pillai5,
the matter was referred to a three Judge bench, which in turn referred13
the matter to a larger Bench. While doing so, the three-Judge Bench
observed:
"......The three-Judge Bench in Krishna Pillai5 has not adverted
to diverse aspects including the aspects that inaction on the part
of the court by not taking cognizance swiftly or within limitation,
although the complaint has been filed within time or the prosecution
has been instituted within time, should not act prejudicial to the
prosecution or the complainant."
(E) A Constitution Bench of this Court in Sarah Mathew v.
Institute of Cardio Vascular Diseases etc. and others3 framed the
questions for its consideration as under:
"3. No specific questions have been referred to us. But, in
our opinion, the following questions arise for our consideration:
3.1. (i) Whether for the purposes of computing the period
of limitation under Section 468 CrPC the relevant date is the date
of filing of the complaint or the date of institution of the prosecution
or whether the relevant date is the date on which a Magistrate
takes cognizance of the offence?
13 (2014) 2 SCC 104.
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3.2. (ii) Which of the two cases i.e. Krishna
Pillai5 or Bharat Kale7 (which is followed in Japani Sahoo10,
lays down the correct law?"
After noticing the 42nd Law Commission's Report and the relevant
provisions and scheme of Chapter XXXVI of the Code, the Constitution
Bench stated:
"37. We are inclined to take this view also because there has to
be some amount of certainty or definiteness in matters of limitation
relating to criminal offences. If, as stated by this Court, taking
cognizance is application of mind by the Magistrate to the suspected
offence, the subjective element comes in. Whether a Magistrate
has taken cognizance or not will depend on facts and
circumstances of each case. A diligent complainant or the
prosecuting agency which promptly files the complaint or initiates
prosecution would be severely prejudiced if it is held that the
relevant point for computing limitation would be the date on which
the Magistrate takes cognizance. The complainant or the
prosecuting agency would be entirely left at the mercy of the
Magistrate, who may take cognizance after the limitation period
because of several reasons; systemic or otherwise. It cannot be
the intention of the legislature to throw a diligent complainant out
of the court in this manner. Besides, it must be noted that the
complainant approaches the court for redressal of his grievance.
He wants action to be taken against the perpetrators of crime.
The courts functioning under the criminal justice system are created
for this purpose. It would be unreasonable to take a view that
delay caused by the court in taking cognizance of a case would
deny justice to a diligent complainant. Such an interpretation of
Section 468 CrPC would be unsustainable and would render it
unconstitutional. It is well settled that a court of law would interpret
a provision which would help sustaining the validity of the law by
applying the doctrine of reasonable construction rather than
applying a doctrine which would make the provision unsustainable
and ultra vires the Constitution. (U.P. Power Corpn.
Ltd. v. Ayodhya Prasad Mishra14)
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14 (2008) 10 SCC 139 : (2008) 2 SCC (L&S) 1000
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41. There can be no dispute about the rules of interpretation cited
by the counsel. It is true that there is no ambiguity in the relevant
provisions. But, it must be borne in mind that the word "cognizance"
has not been defined in CrPC. This Court had to therefore interpret
this word. We have adverted to that interpretation. In fact, we
have proceeded to answer this reference on the basis of that
interpretation and keeping in mind that special connotation acquired
by the word "cognizance". Once that interpretation is accepted,
Chapter XXXVI along with the heading has to be understood in
that light. The rule of purposive construction can be applied in
such a situation. A purposive construction of an enactment is one
which gives effect to the legislative purpose by following the literal
meaning of the enactment where that meaning is in accordance
with the legislative purpose or by applying a strained meaning
where the literal meaning is not in accordance with the legislative
purpose (see Francis Bennion on Statutory Interpretation).
After
noticing
this
definition
given
by Francis
Bennion in National Insurance Co. Ltd. v. Laxmi Narain
Dhut15 , this Court noted that : (SCC p. 718, para 35)
"35. More often than not, literal interpretation of a statute
or a provision of a statute results in absurdity. Therefore, while
interpreting statutory provisions, the courts should keep in mind
the objectives or purpose for which statute has been enacted."
In the light of this observation, we are of the opinion that if in the
instant case literal interpretation appears to be in any way in conflict
with the legislative intent or is leading to absurdity, purposive
interpretation will have to be adopted.
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49. It is true that penal statutes must be strictly construed. There
are, however, cases where this Court has having regard to the
nature of the crimes involved, refused to adopt any narrow and
pedantic, literal and lexical construction of penal statutes.
(See Murlidhar Meghraj Loya v. State of Maharashtra16
and Kisan Trimbak Kothula v. State of Maharashtra.17 In this
15 (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142
16 (1976) 3 SCC 684 : 1976 SCC (Cri) 493
17 (1977) 1 SCC 300 : 1977 SCC (Cri) 97
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case, looking to the legislative intent, we have harmoniously
construed the provisions of Chapter XXXVI so as to strike a
balance between the right of the complainant and the right of the
accused. Besides, we must bear in mind that Chapter XXXVI is
part of the Criminal Procedure Code, which is a procedural law
and it is well settled that procedural laws must be liberally construed
to serve as handmaid of justice and not as its mistress. (See Sardar
Amarjit Singh Kalra (D) by Lrs. & Ors. v. Pramod Gupta (D) by
Lrs. & Ors.18, N. Balaji v. Virendra Singh19 and Kailash v. Nankhu
& Ors.20"
Finally, it was concluded in paragraphs 50 and 51 as under:
"50.